Exhibit 10.14


 


SEPARATION AGREEMENT AND RELEASE


 


This
Separation Agreement and Release (“Agreement”) is between VYYO LTD. (“Vyyo”) of Hanegev
4, Airport City, and Arik Levi (“Employee”).  This Agreement shall be effective as of April 8,
2008 (“Effective
Date”).


 


RECITALS


 


WHEREAS, Employee
served as an employee of Vyyo, pursuant to an Employment Agreement dated March 1,
2000 (the “Employment
Agreement”); and


 


WHEREAS, on March 1,
2008 Vyyo delivered a termination notice to Employee (the “Notice
Date”); and


 


WHEREAS, Vyyo and
Employee desire to amicably settle the termination of Employee’s employment
relationship with Vyyo; and


 


WHEREAS, even though Employee
has made no claims against Vyyo and Vyyo has made no claims against Employee, Vyyo
and Employee desire to resolve any and all claims and potential claims as
described in this Agreement.


 


ACCORDINGLY,
the parties agree as follows:


 


1.              Effective as of November 30th, 2008 (the “Termination Date”), Employee’s employment with Vyyo shall
cease, except as set forth in this Agreement. It is understood that effective
as of the Termination Date, the employer-employee relationship between the
Employee and Vyyo shall be fully and finally terminated.


 


2.              From the Notice Date and until the Termination Date, Vyyo will pay
Employee monthly base salary of NIS 65,392, plus all rights and fringe benefits
under the Employment Agreement as amended from time to time.


 


3.              Vyyo will pay
Employee Recreation Pay (“Demei Havra’ah”)
in the amount of NIS 2,647 on August 1st, 2008, and NIS 882 on the
Termination date.


 


4.              On the Termination Date, Vyyo
will:


 


4.1.     Transfer to the name of Employee the ownership of
Manager’s Insurance (“Bituach Menahalim”) policies, including his Manager’s
Insurance policy with the Migdal Insurance company. It is agreed hereby that providing
a letter instructing the insurance company to transfer the Manager’s Insurance
policies to Employee’s ownership will be deemed full satisfaction of Vyyo’s obligations
in connection with Employee’s rights to Manager’s Insurance.


 

















 


4.2.     Transfer to Employee’s name, on the date required by
law, ownership in the Continuous Education Fund (“Keren Hishtalmut”) policies. It
is agreed hereby, that providing a letter instructing Bank Leumi to transfer the Continuous Education Fund to
the ownership of Employee will be deemed as full satisfaction of Vyyo’s
obligations in connection with Employee’s rights to the Continuous Education
Fund.


 


4.3.     Pay Employee an amount of NIS 105,149 constituting the remaining severance payments (Hashlamat
Pitzuii Piturin) due to the Employee in addition to the amounts accrued on his
behalf on account of the severance payment in his Manager’s Insurance Policy.
Provided however, that in the event that Vyyo prepays the remaining severance
payments (Hashlamat Pitzuii Piturin) to all of its other employees, it shall similarly
prepay such remaining severance payments to Employee.


 


4.4.     It
is agreed herein that providing a letter instructing the insurance company to
transfer the Manager’s Insurance
policy to the ownership of Employee, and attaching the relevant Form 161,
will be deemed to effect the terms stated in paragraphs 4.1 and 4.2.


 


5.              Employee hereby acknowledges and confirms that the total
number of unused vacation days that were accrued to his benefit prior to the
date hereof is 48 working days (the “Previously
Accrued Vacation”). Employee undertakes to use any and all Previously
Accrued Vacation until the Termination Date. In addition, Employee undertakes
to use any and all vacation days that will accrue from the Notice Date and until
the Termination Date (the “Remaining Vacation Days”),
prior to the Termination Date.


 


6.              No later than April 1, 2008,
Employee shall return to Vyyo the leased car found in his possession and the fuel
meter, in good and proper condition, in the same condition as obtained.  Employee is obligated to pay all fees and
parking statements pertaining to such car which are attributable to the period
that ends on the date of actual return of the car by Employee to Vyyo.


 


7.              Employee declares and confirms
that in accordance with the Option Agreement dated March 25, 2003 (Vyyo
Inc. internal option number (“Number”) 0000852) (“First Option
Agreement”) between Employee and Vyyo Inc. (“Vyyo Inc.”), Employee was granted options to acquire 10,000 shares of Common Stock of Vyyo Inc. at
an exercise price of $2.27 per share (the “First
Options”).  Employee also declares and confirms that in
accordance with the Option Agreement dated May 13, 2003 (Number 0000867) (“Second Option Agreement”) between Employee and Vyyo Inc., Employee was granted options to
acquire 30,000 shares of Common Stock of Vyyo Inc. at an exercise price of $2.90
per share (“Second Options”). 
Employee also declares and confirms that in accordance with the Option
Agreement dated August 12, 2003 (Number 0000925) (“Third Option Agreement”) between Employee and Vyyo Inc., Employee was granted options to
acquire 50,000 shares of Common Stock of Vyyo Inc. at an exercise price of $3.92
per share (“Third Options”). 
Employee also declares and confirms that in accordance with


 


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the
Option Agreement dated February 10, 2006 (Number 0001362) (“Fourths Option Agreement”) between Employee and Vyyo Inc.,
Employee was granted options to acquire 90,000 shares of Common Stock of Vyyo
Inc. at an exercise price of $5.22 per share (“Fourths Options”).  Employee also declares and confirms that in
accordance with the Option Agreement dated march 21, 2006 (Number 001208) (“Fifth Option Agreement”) between Employee and Vyyo Inc.,
Employee was granted options to acquire 20,000 shares of Common Stock of Vyyo
Inc. at an exercise price of $7.50 per share (“Fifth Options”).  Employee
also declares and confirms that in accordance with the Option Agreement dated March 21,
2006 (Number 001209) (“Sixth Option
Agreement”) between Employee and Vyyo Inc., Employee was granted options to
acquire 20,000 shares of Common Stock of Vyyo Inc. at an exercise price of $9.00
per share (“Sixth Options”).  Employee also declares and confirms that in
accordance with the Option Agreement dated March 21, 2006 (“Seventh Option Agreement”) between Employee and Vyyo Inc.,
Employee was granted options to acquire 20,000 shares of Common Stock of Vyyo
Inc. at an exercise price of $10.50 per share (“Seventh Options”).  Employee also declares and confirms that in
accordance with the Option Agreement dated November 9, 2006 (Number
001443) (“Eighth Option Agreement”) between Employee and Vyyo Inc.,
Employee was granted options to acquire 24,000 shares of Common Stock of Vyyo
Inc. at an exercise price of $3.35 per share (“Eighth Options”).


 


Employee declares and affirms
that as of the Termination Date, options to acquire 10,000 shares of the
aggregate number of options underlying the First Options, options to acquire 30,000
shares of the aggregate number of options underlying the Second Options,
options to acquire 50,000 shares of the aggregate number of options underlying
the Third Options, options to acquire 67,750 shares of the aggregate number of
options underlying the Fourth Options, options to acquire 0 shares of the
aggregate number of options underlying the Fifth Options, options to acquire 0
shares of the aggregate number of options underlying the Sixth Options, options
to acquire 0 shares of the aggregate number of options underlying the Seventh
Options, and options to acquire 24,000 shares of the aggregate number of
options underlying the Eighth Options shall vest (hereinafter, the aggregate number
of 177,750 vested options under the First Options, Second Options, Third
Options, Fourth Options, Fifth Options, Sixth Options, Seventh Options and Eights
Option options will be collectively referred to as “Vested
Options”).  All remaining options that have not vested as
of the Termination Date, whether granted pursuant to the First Options, Second
Options, Third Options, Fourth Options, Fifth Options, Sixth Options, Seventh
Options or Eights Options, including 20,000 options granted on November 6,
2001 which were previously cancelled (i.e., 106,250 options), will be
automatically cancelled on the Termination Date and Employee will have no right
thereunder.


 


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The Vested
Options (and solely the Vested Options) may be exercised until March 31,
2009.  The Vested Options, or any part thereof,
which were not exercised will be automatically cancelled as of April 1,
2009, and Employee will not have any right to obtain shares thereby.


 


Employee declares
and confirms that, other than his rights in the Vested Options as stated above,
he has no rights of any type to purchase or receive any securities of Vyyo Inc.,
or of any company affiliated with it (including, without limitation, Vyyo Ltd.,
Xtend Networks Ltd. or any subsidiary or an affiliate of any of the foregoing
companies), whatever their source, including rights in options that were not
vested as of the Termination Date, and he will have no claim for such rights.


 


The
provisions of Vyyo Inc.’s Fourth Amended and Restated 2000 Employee and Consultant
Equity Incentive Plan, and the terms and conditions of the First Option
Agreement and the Second Option Agreement between Vyyo Inc. and Employee will continue
to apply in accordance with their terms, mutatis
mutandis.


 


8.              Employee does hereby declare, confirm
and undertake that upon receipt of the funds detailed above, Vyyo, Vyyo Inc.
and any subsidiary thereof, have fulfilled all of their obligations to him in
connection with his employment and termination thereof, including salary and all
payments, including, without limitation, any and all payments, if applicable,
for the advance notice period, payment in redemption of annual vacation or
holiday allowance, recreation pay, severance pay, health insurance, expense
reimbursement, overtime pay, sick pay, bonuses, that are or shall be due to Employee
in connection with his employment with Vyyo or the termination thereof.  Subject to the provisions of Section 16
below, Employee hereby releases and forever discharges Vyyo, and its parent
company, subsidiaries, partners, investors, predecessors, successors, heirs,
assigns, employees, former employees, shareholders, officers, directors,
agents, attorneys, insurance carriers, subsidiaries, divisions or affiliated
corporations or organizations, whether previously or hereinafter affiliated in
any manner, including without limitation any other entity associated with Vyyo Inc.
(the “Released Party”) from any and all claims, rights, demands,
actions, obligations, liabilities, and causes of action of every kind and
character, known or unknown, mature or unmatured, which Employee may now have
or has ever had against the Released Party, whether based on tort, contract
(express or implied), or any applicable law (collectively, the “Released Claims”) EXCEPT ONLY for its/his
right under this Agreement and any claims or rights which may arise under that
certain indemnification and exculpation agreement dated May 10, 2007
between the Employee and Vyyo Inc.  The Released
Claims shall also include, but not be limited to, claims for severance pay,
bonuses, stock options, shares, sick leave, vacation pay, life or health
insurance, or any other fringe benefit.


 


9.              For the avoidance of doubt, Employee
hereby affirms that this document constitutes a compromise and notification of
dismissal with respect to severance compensation within the meaning of section
29 of the Severance Compensation Law - 1963.


 


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10.        All tax consequences arising from the
payment of funds to the Employee, from the issuance of Shares under Employee
Name and from exercising all rights under this Agreement shall be borne solely
by the Employee. The Employee shall indemnify the Company and hold it harmless against and from any and
all liability for any such tax or interest or penalty thereon, including,
without limitation, liabilities relating to the necessity to withhold or to
have withheld any such tax. The Employee hereby authorizes the Company to
withhold the issuance of any Shares to the Employee pending the payment of all
such tax liabilities by the Employee, at the Company’s discretion.


 


11.        Employee agrees hereby to transfer
his position with Vyyo in a complete and orderly fashion, to make himself
available to Vyyo in a reasonable manner, to fulfill the duties instructed by Vyyo
and to assist Vyyo to the best of his ability in anything connected to
transferring his position or completing his employment.


 


12.        Without derogating from the provisions of Section 5
above, it is hereby acknowledged that Employee
shall not be required to perform services for the Company following the Notice Date   and may provide services to third parties, as
an employee or consultant (each, an “Additional
Engagement”), provided however,
that such Additional Engagements shall be subject to the provisions contained
in Section 10 above and subject to Employee’s
obligations of confidentiality and non-competition.


 


13.        Employee agrees to return to Vyyo,
no later than the Effective Date, all documents, materials, tools and every
other equipment that he used during his employment, all programs or plans in his
possession, in any media whatsoever, and which was obtained in connection with his
employment, where the foregoing is in as good condition as received, however,
the Employee may keep the laptop that is currently in his possession.  Employee further waives and foregoes any
claim for delay of return of any of such equipment.  Without derogating from the generality of the
foregoing, Employee will return to Vyyo all information, in any manner
whatsoever, and all computations received or prepared in connection with his
employment, and which were in the possession of Vyyo, or in any other place,
and Employee agrees that he has not and will not make any copy of any such item
whatsoever.


 


14.        Notwithstanding the foregoing, on September 1,
2008, Vyyo will return to the Employee, his cellular telephone number and the
actual cellular device to his own ownership, in accordance with the agreement
with the cellular company and subject to his signature on the forms of transfer
required by such cellular company.  All
financial obligations for the use of any of such equipment until August 31,
2008 (including tax obligations and all reasonable costs for the use of such cellular
device, which must be consistent with Employee’s past practice and with Vyyo’s
applicable policies) will be borne solely by Vyyo.


 


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15.        Employee undertakes not to cause
other employees of Vyyo to leave Vyyo and not to solicit the employment of
any of the employees of Vyyo with his new place of employment.


 


Employee
further undertakes not to directly or indirectly solicit from the clients of
the Released Party any business directly or indirectly in competition with the
Released Party, or that involves activities in which any entity comprising the
Released Party was engaged or had already planned to be engaged while Employee
provided services to Vyyo.


 


16.        Unless otherwise expressly stated herein,
this Agreement cancels all agreements, contracts or other documents between Employee
and Vyyo, whether written or oral, excluding Employee’s obligations of
confidentiality and non-competition with regard to Vyyo’s intellectual property
  (including
the confidentiality and non-competition undertakings pursuant to the Employment
Agreement and the confidentiality agreement signed between the Employee and
Vyyo, which is attached hereto as Appendix A), which shall remain in
full force and effect. Notwithstanding the foregoing, the Company shall procure
that the directors and officers insurance policy of Vyyo Inc. in effect on the
Effective Date shall continue to be in full force and effect as necessary to
cover the liabilities of the Employee in connection with his service to the
Company or to Vyyo inc. prior to the Termination
Date.


 


17.        The parties to this Agreement
agree and confirm that it is known to them that a primary condition to Vyyo’s
and Employee’s obligations is that each of its terms, and the negotiations
surrounding it, are confidential and shall not be disclosed by them or anyone
on their behalf, directly or indirectly, to any third party whatsoever,
including employees and consultants of Vyyo or its past employees and
consultants. Employee confirms that he knows that if he breaches his confidentiality
obligations, Vyyo will be free from its obligations under this Agreement.


 


18.        Employee acknowledges
that (a) he has had the opportunity to consult with whomever he desires in
regard to this Agreement; (b) he has read and understands the Agreement
and is fully aware of its legal effect; and (c) he is entering into this
Agreement freely and voluntarily, and based on he own judgment and not on any
representations or promises made by Vyyo, other than those contained in this
Agreement.


 


 


	
  DATED:  April 8, 2008

  	
   

  	
  DATED: April 8, 2008

  



 


 


	
  /s/ Wayne H. Davis

  	
   

  	
  /s/ Arik Levi

  
	
   

  	
   

  	
   

  
	
  Vyyo Ltd.

  	
   

  	
  Arik Levi

  
	
   

  	
   

  	
   

  
	
  By:   Wayne
  H. Davis, CEO of Vyyo Inc.,

  	
   

  	
   

  
	
  Parent
  of Vyyo Ltd.

  	
   

  	
   

  



 


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